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Fallo Corte Apelaciones New York NML Vs Argentina
Fallo Corte Apelaciones New York NML Vs Argentina
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12-105(L)
NML Capital, Ltd. v. Republic of Argentina
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Docket Nos. 12-105(L), 12-109 (CON), 12-111 (CON), 12-157 (CON), 12-158 (CON), 12-163
(CON), 12-164 (CON), 12-170 (CON), 12-176 (CON), 12-185 (CON), 12-189 (CON), 12-214
(CON), 12-909 (CON), 12-914 (CON), 12-916 (CON), 12-919 (CON), 12-920 (CON), 12-923
(CON), 12-924 (CON), 12-926 (CON), 12-939 (CON), 12-943 (CON), 12-951 (CON), 12-968
(CON), 12-971 (CON), 12-4694 (CON), 12-4829 (CON), 12-4865 (CON)*
_____________________
NML CAPITAL, LTD., AURELIUS CAPITAL MASTER, LTD., ACP MASTER, LTD., BLUE ANGEL
CAPITAL I LLC, AURELIUS OPPORTUNITIES FUND II, LLC, PABLO ALBERTO VARELA, LILA INES
BURGUENO, MIRTA SUSANA DIEGUEZ, MARIA EVANGELINA CARBALLO, LEANDRO DANIEL
POMILIO, SUSANA AQUERRETA, MARIA ELENA CORRAL, TERESA MUNOZ DE CORRAL, NORMA
ELSA LAVORATO, CARMEN IRMA LAVORATO, CESAR RUBEN VAZQUEZ, NORMA HAYDEE GINES,
MARTA AZUCENA VAZQUEZ, OLIFANT FUND, LTD.,
Plaintiffs-Appellees,
v.
THE REPUBLIC OF ARGENTINA,
Defendant-Appellant,
THE BANK OF NEW YORK MELLON, as Indenture Trustee, EXCHANGE BONDHOLDER GROUP,
FINTECH ADVISORY INC.,
Non-Party Appellants,
Appeals numbered 12-105, 12-109, 12-111, 12-157, 12-158, 12-163, 12-164, 12-170,
12-176, 12-185, 12-189, and 12-214 were dismissed as of October 26, 2012. Appeals numbered
12-909, 12-914, 12-916, 12-919, 12-920, 12-923, 12-924, 12-926, 12-939, 12-943, 12-951,
12-968, 12-971, 12-4829 are decided by this opinion. Appeals numbered 12-4694 and 12-4865
are dismissed by this opinion.
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Case: 12-909
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Case: 12-909
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Case: 12-909
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Case: 12-909
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______________________________________________________________________________
BARRINGTON D. PARKER, Circuit Judge:
This is a contract case in which the Republic of Argentina refuses to pay certain holders
of sovereign bonds issued under a 1994 Fiscal Agency Agreement (hereinafter, the FAA and
the FAA Bonds). In order to enhance the marketability of the bonds, Argentina made a series
promised that the bonds would be governed by New York law. Argentina promised that, in the
event of default, unpaid interest and principal would become due in full. Argentina promised
that any disputes concerning the bonds could be adjudicated in the courts of New York.
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Argentina promised that each bond would be transferrable and payable to the transferee,
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an orphan. Finally, Argentina promised to treat the FAA Bonds at least equally with its other
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specifically forbidding future payment on them, and continuing to pay interest on subsequently
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issued debt, Argentina breached its promise of equal treatment. See NML Capital, Ltd. v.
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Republic of Argentina, 699 F.3d 246 (2d Cir. 2012) (NML I).
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intended to remedy Argentinas breach of the equal treatment obligation in the FAA. See id.
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Our opinion chronicled pertinent aspects of Argentinas fiscal history and the factual background
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of this case, see id. at 251-57, familiarity with which is assumed.1 Those injunctions, fashioned
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by the Hon. Thomas P. Griesa, directed that whenever Argentina pays on the bonds or other
obligations that it issued in 2005 or 2010 exchange offers (the Exchange Bonds), the Republic
must also make a ratable payment to plaintiffs who hold defaulted FAA Bonds. We remanded,
however, for the district court to clarify the injunctions payment formula and effects on third
parties and intermediary banks, and retained jurisdiction pursuant to United States v. Jacobson,
On November 21, 2012, the district court issued amended injunctions with the
clarifications we requested,2 as well as an opinion explaining them, which are challenged on this
appeal by Argentina as well as by non-party appellants and intervenors. See NML Capital, Ltd.
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v. Republic of Argentina, No. 08 Civ. 6978 (TPG), 2012 WL 5895786 (S.D.N.Y. Nov. 21, 2012)
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(NML II). Recognizing the unusual nature of this litigation and the importance to Argentina of
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the issues presented, following oral argument, we invited Argentina to propose to the appellees
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an alternative payment formula and schedule for the outstanding bonds to which it was prepared
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to commit. Instead, the proposal submitted by Argentina ignored the outstanding bonds and
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proposed an entirely new set of substitute bonds.3 In sum, no productive proposals have been
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the FAA in New York courts under New York law, at the February 27, 2013 oral argument,
See NML Capital, Ltd. v. Republic of Argentina, No. 08 Civ. 6978 (TPG), 2012 WL
5895784 (S.D.N.Y. Nov. 21, 2012); Aurelius Capital Master, Ltd. & ACP Master, Ltd. v.
Republic of Argentina, No. 09 Civ. 8757 (TPG), Dkt. No. 312 (S.D.N.Y. Nov. 26, 2012); Olifant
Fund, Ltd. v. Republic of Argentina, No. 10 Civ. 9587, Dkt. No. 40 (S.D.N.Y. Nov. 26, 2012);
Varela v. Republic of Argentina, No. 10 Civ. 5338, Dkt. No. 64 (S.D.N.Y. Nov. 26, 2012). We
refer to these collectively as the amended injunctions.
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See Dkt. No. 935 (Argentinas Proposal of March 29, 2013); see also Dkt. No. 950
(Appellees April 22, 2013 Response to Argentinas Proposal).
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counsel for Argentina told the panel that it would not voluntarily obey the district courts
injunctions, even if those injunctions were upheld by this Court. Moreover, Argentinas officials
have publicly and repeatedly announced their intention to defy any rulings of this Court and the
district court with which they disagree.4 It is within this context that we review the amended
injunctions for abuse of discretion and, finding none, we affirm.5 However, in view of the nature
of the issues presented, we will stay enforcement of the injunctions pending resolution of a
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In its opinion, the district court first explained that its ratable payment requirement
meant that whenever Argentina pays a percentage of what is due on the Exchange Bonds, it must
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pay plaintiffs the same percentage of what is then due on the FAA Bonds. Id. at *2. Under the
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express terms of the FAA, as negotiated and agreed to by Argentina, the amount currently due on
See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 142 (2d Cir. 2011). A
district court abuses its discretion when it bases a ruling on an erroneous view of the law or on a
clearly erroneous assessment of the evidence, or render[s] a decision that cannot be located
within the range of permissible decisions. Sims v. Blot, 534 F.3d 117, 132 (2d Cir. 2008)
(internal quotation marks omitted).
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Apparently, Argentina filed a petition for certiorari in this matter on June 24, 2013,
notwithstanding that, as of that date, no final order had yet issued in this case. See Supreme
Court Dkt. 12-1494.
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the FAA Bonds, as a consequence of its default, is the outstanding principal and accrued interest.
See id.; NML I at 254 n.7; see also Appellant Argentina 2012 Br. at 26 ([T]he contractually
agreed upon remedy [for default] is acceleration of principal, an action already taken by these
plaintiffs.). Thus, as the district court explained, if Argentina pays Exchange Bondholders
100% of what has come due on their bonds at a given time, it must also pay plaintiffs 100% of
the roughly $1.33 billion of principal and accrued interest that they are currently due. See NML
II at *3.
Second, the district court explained how its injunctions would prevent third parties from
assisting Argentina in evading the injunctions. Though the amended (and original) injunctions
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directly bind only Argentina, the district court correctly explained that, through the automatic
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operation of Federal Rule of Civil Procedure 65(d), they also bind Argentinas agents and
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other persons who are in active concert or participation with Argentina. See id. at *4; Fed. R.
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Civ. P. 65(d)(2). Those bound under the operation of Rule 65(d) would include certain entities
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involved in the system through which Argentina pays Exchange Bondholders. As the district
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court stated:
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Argentina transfers funds to the Bank of New York Mellon (BNY), which is the
indenture trustee in a Trust Indenture of 2005. Presumably there is a similar
indenture for the 2010 exchange offer. BNY then forwards the funds to the
registered owner of the Exchange Bonds. There are two registered owners for the
2005 and 2010 Exchange Bonds. One is Cede & Co. and the other is the Bank of
New York Depositary (BNY Depositary). Cede and BNY Depositary transfer the
funds to a clearing system such as the Depository Trust Company (DTC). The
funds are then deposited into financial institutions, apparently banks, which then
transfer the funds to their customers who are the beneficial interest holders of the
bonds.
NML II at *5. Of these, the amended injunctions cover Argentina, the indenture trustee(s), the
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registered owners, and the clearing systems. See id. The amended injunctions explicitly exempt
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intermediary banks, which enjoy protection under Article 4A of New Yorks Uniform
Commercial Code (U.C.C.), and financial institutions receiving funds from the DTC. See id.
In accordance with our October 2012 opinion, the litigation then returned to our Court.
Argentina has challenged certain aspects of the amended injunctions, and appeals have also
followed from other entities: a group of Exchange Bondholders, styling themselves as the
Exchange Bondholder Group (EBG); the Bank of New York Mellon (BNY), indenture
trustee to Exchange Bondholders; and Fintech Advisory Inc., a holder of Exchange Bonds. We
further received briefing (but no notices of appeal) from two intervenors: a group of bondholders
calling themselves the Euro Bondholders, and ICE Canyon LLC, a holder of GDP-linked
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APPELLATE STANDING
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Neither BNY, EBG, Fintech, Euro Bondholders, nor ICE Canyon intervened below, but
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each seeks to participate here as a non-party. As a general rule, only parties may appeal, but we
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have recognized non-party appellate standing in two situations: where the non-party is bound by
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the judgment and where the non-party has an interest plausibly affected by the judgment. See
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Official Comm. of Unsecured Creditors of WorldCom, Inc. v. S.E.C., 467 F.3d 73, 77-78 (2d Cir.
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2006).
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The amended injunctions provide that BNY, as a participant in the payment process of
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the Exchange Bonds, shall be bound by the terms of this ORDER as provided by [Federal Rule
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of Civil Procedure] 65(d)(2). 2012 WL 5895784, at *2. Accordingly, BNY has standing to
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appeal. See NML Capital, Ltd. v. Banco Central de la Repblica Argentina, 652 F.3d 172, 175
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n.1 (2d Cir. 2011) (holding that non-party Banco Central de la Repblica Argentina had standing
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to challenge attachment and execution order). In contrast, EBG, Fintech, Euro Bondholders, and
ICE Canyon are not bound by the amended injunctions. They are creditors, and, as such, their
interests are not plausibly affected by the injunctions because a creditors interest in getting paid
is not cognizably affected by an order for a debtor to pay a different creditor. Cf. Dish Network
Corp. v. DBSD N. Am., Inc., 634 F.3d 79, 90 (2d Cir. 2010); Evanston Ins. Co. v. Fred A. Tucker
& Co., Inc., 872 F.2d 278, 280 (9th Cir. 1989). If Argentina defaults on its obligations to them,
they retain their rights to sue. And, as discussed below, their interests are not cognizably
affected in any other way. Consequently, EBG, Fintech, Euro Bondholders, and ICE Canyon
have no appellate standing, and the appeals from EBG and Fintech are hereby dismissed. (Euro
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Bondholders and ICE Canyon did not file appeals of their own.)
At the same time, their arguments are not lost because they requested that, in the event
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they were not deemed appellants, the court consider their arguments as coming from amici
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curiae. Because Argentina contends in its own appeal that the amended injunctions should be
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vacated because, among other reasons, they are inequitable to Exchange Bondholders, we will
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consider the arguments of EBG, Fintech, Euro Bondholders, and ICE Canyon as arguments from
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Judge Pooler disagrees with the majority decision to dismiss the appeals of EBG,
Fintech, Euro Bondholders, and ICE Canyon. However, as the arguments of the dismissed
appellants are treated as made by amici, and as the status of the non-appellants matters little to
the outcome here, Judge Pooler has agreed to note her disagreement for the record in this
footnote, rather than dissent.
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DISCUSSION
Argentina advances a litany of reasons as to why the amended injunctions unjustly injure
itself, the Exchange Bondholders, participants in the Exchange Bond payment system, and the
public. None of the alleged injuries leads us to find an abuse of the district courts discretion.
I.
Argentina argues that the amended injunctions violate the Foreign Sovereign Immunities Act
(FSIA) by forcing Argentina to use resources that the statute protects. As discussed in our
October opinion, the original injunctionsand now the amended injunctionsdo not violate the
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FSIA because [t]hey do not attach, arrest, or execute upon any property as proscribed by the
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statute.8 NML I at 262-63. Rather, the injunctions allow Argentina to pay its FAA debts with
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whatever resources it likes. Absent further guidance from the Supreme Court, we remain
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convinced that the amended injunctions are consistent with the FSIA.
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Second, Argentina argues that the injunctions ratable payment remedy is inequitable
because it calls for plaintiffs to receive their full principal and all accrued interest when
As we noted,
[a]n attachment is the seizing of a persons property to secure a judgment or to
be sold in satisfaction of a judgment. Blacks Law Dictionary 123 (9th ed.2009);
see also 6 Am. Jur. 2d Attachment and Garnishment 1. An arrest is [a] seizure or
forcible restraint. Blacks Law Dictionary 124 (9th ed. 2009). Execution is an
act of dominion over specific property by an authorized officer of the court . . . which
results in the creation of a legal right to subject the debtors interest in the property
to the satisfaction of the debt of his or her judgment creditor. 30 Am. Jur. 2d
Executions 177; see also Blacks Law Dictionary (9th ed. 2009) (Judicial
enforcement of a money judgment, usu. by seizing and selling the judgment debtors
property.).
NML I at 262 n.13.
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Exchange Bondholders receive even a single installment of interest on their bonds. However,
the undisputed reason that plaintiffs are entitled immediately to 100% of the principal and
interest on their debt is that the FAA guarantees acceleration of principal and interest in the
event of default. See NML I at 254 n.7; NML II at *4. As the district court concluded, the
amount currently owed to plaintiffs by Argentina as a result of its persistent defaults is the
accelerated principal plus interest. We believe that it is equitable for one creditor to receive what
it bargained for, and is therefore entitled to, even if other creditors, when receiving what they
bargained for, do not receive the same thing. The reason is obvious: the first creditor is
differently situated from other creditors in terms of what is currently due to it under its contract.
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See Fin. One Pub. Co. v. Lehman Bros. Special Fin., Inc., 414 F.3d 325, 344 (2d Cir. 2005).
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Because the district courts decision does no more than hold Argentina to its contractual
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Argentina adds that the amended injunctions are invalid because a district court may not
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issue an injunctive remedy [that] was historically unavailable from a court of equity. Grupo
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Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308, 333 (1999). However,
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English chancery courts traditionally had power to issue injunctions and order specific
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performance when no effective remedy was available at law. See 11A Charles Alan Wright &
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Arthur R. Miller, Federal Practice and Procedure 2944 (2d ed. 1994). As we explained in our
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October 2012 opinion, the plaintiffs have no adequate remedy at law because the Republic has
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made clear its intention to defy any money judgment issued by this Court. See NML I at 261-62.
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Moreover, Argentina has gone considerably farther by passing legislation, the Lock Law,
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empowered to afford equitable relief may also direct the timing of that relief. Here, that timing
requires that it occur before or when Argentina next pays the Exchange Bondholders.
II.
unreasonable hardship or loss to third persons, see Nemer Jeep-Eagle, Inc. v. Jeep-Eagle Sales
Corp., 992 F.2d 430, 436 (2d Cir. 1993), Argentina, EBG, and Fintech argue that the amended
injunctions are inequitable to Exchange Bondholders.9 But this case presents no conflict with
that proposition. EBG argues, notwithstanding our affirmance of the district courts finding that
Argentina has the financial wherewithal to pay all of its obligations, see NML I at 256, 263, that
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the amended injunctions will harm Exchange Bondholders because Argentina has declared
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publicly that it has no intention of ever paying holdout bondholders like NML and, as a result,
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neither plaintiffs nor Exchange Bondholders will be paid if the amended injunctions stand.
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Intervenor ICE Canyon urges that the amended injunctions should not apply to eurodenominated GDP-linked securities that Argentina issued in its 2005 and 2010 exchanges. The
gist of ICE Canyons argument is that the amended injunctions require payment to plaintiffs
whenever Argentina pays on the Exchange Bonds, not when it pays on GDP-linked securities
which yield revenue only if the Republics GDP grows. By their terms, however, the amended
(and original) injunctions require payment to plaintiffs whenever Argentina pays on Exchange
Bonds, defined as including both bonds and other obligations issued in the exchange offers.
2012 WL 5895784, at *2 (emphasis added). The inclusion of other obligations like GDP-linked
securities is unsurprising, given that the FAA required that the FAA Bonds be treated at least
equally with all obligations (other than the [FAA Bonds]) for borrowed money or evidenced by
securities, debentures, notes or other similar instruments denominated or payable, or which at the
option of the holder thereof may be payable, in a currency other than the lawful currency of the
Republic. . . . J.A. 171. The euro-denominated GDP-linked securities fit this description
because they are obligations . . . evidenced by securities . . . denominated . . . in a currency
other than the lawful currency of the Republic. Accordingly, we see no need to clarify the
amended injunctions, and we consider the term Exchange Bonds to include the
euro-denominated GDP-linked securities.
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who avows not to obey itdoes not make an otherwise lawful injunction inequitable. We are
unwilling to permit Argentinas threats to punish third parties to dictate the availability or terms
of relief under Rule 65. See Reynolds v. Intl Amateur Athletic Fedn, 505 U.S. 1301, 1302
(1992) (Stevens, J., in chambers). Argentinas contention that the amended injunctions are
unfair to Exchange Bondholders is all the less persuasive because, before accepting the exchange
offers, they were expressly warned by Argentina in the accompanying prospectus that there
could be no assurance that litigation over the FAA Bonds would not interfere with payments
under the Exchange Bonds. J.A. 466. Under these circumstances, we conclude that the amended
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III.
Argentina, BNY, Euro Bondholders, and ICE Canyon raise additional issues concerning
the amended injunctions and their effects on the international financial system through which
Argentina pays Exchange Bondholders. The arguments include that (1) the district court lacks
personal jurisdiction over payment system participants and therefore cannot bind them with the
amended injunctions, (2) the amended injunctions cannot apply extraterritorially, (3) payment
system participants are improperly bound because they were denied due process, and (4) the
amended injunctions application to financial system participants would violate the U.C.C.s
protections for intermediary banks. None of these arguments, numerous as they are, has merit.11
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First, BNY and Euro Bondholders argue that the district court erred by purporting to
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enjoin payment system participants over which it lacks personal jurisdiction. But the district
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court has issued injunctions against no one except Argentina. Every injunction issued by a
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district court automatically forbids otherswho are not directly enjoined but who act in active
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See Fed. R. Civ. P. 65(d). In any event, the Supreme Court has expressed its expectation that,
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when questions arise as to who is bound by an injunction though operation of Rule 65, district
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courts will not withhold a clarification in the light of a concrete situation. Regal Knitwear Co.
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We also note that some payment system participants, ostensibly concerned about being
sued for obeying the injunctions, apparently enjoy the protection of exculpatory clauses in their
contracts. See e.g., Trust Indenture of June 2, 2005, 5.2(xvi), Supp. App. 662 ([BNY] will not
be liable to any person if prevented or delayed in performing any of its obligations . . . by reason
of any present or future law applicable to it, by any governmental or regulatory authority or by
any circumstance beyond its control . . . .).
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v. N.L.R.B., 324 U.S. 9, 15 (1945). The doors of the district court obviously remain open for
such applications.
The amended injunctions simply provide notice to payment system participants that they
could become liable through Rule 65 if they assist Argentina in violating the district courts
orders. Since the amended injunctions do not directly enjoin payment system participants, it is
irrelevant whether the district court has personal jurisdiction over them. And of course, [t]here
a hearing, after adequate notice, to present evidence. Golden State Bottling Co., Inc. v.
N.L.R.B., 414 U.S. 168, 180 (1973). In such a hearing, before any finding of liability or sanction
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against a non-party, questions of personal jurisdiction may be properly raised. But, at this point,
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they are premature. Similarly, payment system participants have not been deprived of due
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process because, if and when they are summoned to answer for assisting in a violation of the
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district courts injunctions, they will be entitled to notice and the right to be heard. See id. at
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181.
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Euro Bondholders and ICE Canyon next argue that the amended injunctions are improper
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or at a minimum violate comity where they extraterritorially enjoin payment systems that deliver
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funds to Exchange Bondholders. But a federal court sitting as a court of equity having personal
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jurisdiction over a party [here, Argentina] has power to enjoin him from committing acts
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elsewhere. Bano v. Union Carbide, 361 F.3d 696, 716 (2d Cir. 2004) (internal quotation marks
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omitted). And federal courts can enjoin conduct that has or is intended to have a substantial
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effect within the United States. United States v. Davis, 767 F.2d 1025, 1036 (2d Cir. 1985).
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The district court put forward sufficient reasons for binding Argentinas conduct,
regardless of whether that conduct occurs here or abroad. See NML II at *4 (noting that if
Argentina is able to pay Exchange Bondholders while avoiding its obligations to plaintiffs, the
Injunctions will be entirely for naught); see also Oral Arg. Tr. Nov. 9, 2012, 16:16-18, Supp.
App. 461 ([T]he Republic has done everything possible to prevent those judgments that have
been entered [against it] from being enforced.). And the district court has articulated good
reasons that the amended injunctions must reach the process by which Argentina pays Exchange
Bondholders. See NML II at *4 (noting that, to prevent Argentina from avoiding its obligations
to plaintiffs, it is necessary that the process for making payments on the Exchange Bonds be
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law, then third parties should properly be held responsible for making sure that their actions
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are not steps to carry out a law violation). The amended injunctions do not directly enjoin any
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foreign entities other than Argentina. By naming certain foreign payment system participants
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(such as Clearstream Banking S.A., Euroclear Bank S.A./N.V., and Bank of New York
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(Luxembourg) S.A), the district court was, again, simply recognizing the automatic operation of
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Rule 65.
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If ICE Canyon and the Euro Bondholders are correct in stating that the payment process
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for their securities takes place entirely outside the United States, then the district court misstated
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that, with the possible exception of Argentinas initial transfer of funds to BNY, the Exchange
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Bond payment process, without question takes place in the United States. NML II at *5 n.2.
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But this possible misstatement is of no moment because, again, the amended injunctions enjoin
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no one but Argentina, a party that has voluntarily submitted to the jurisdiction of the district
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court. If others in active concert or participation with Argentina are outside the jurisdiction or
reach of the district court, they may assert as much if and when they are summoned to that court
Argentina and Fintech further argue that the amended injunctions violate Article 4A of
the U.C.C., which was enacted to provide a comprehensive framework that defines the rights and
obligations arising from wire transfers. See Exp.-Imp. Bank of the U.S. v. Asia Pulp & Paper
Co., 609 F.3d 111, 118 (2d Cir. 2010). Two sections of that article are at issue: 502,
concerning creditor process, and 503, requiring proper cause before a party to a fund transfer
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lien, sequestration, or similar process issued by or on behalf of a creditor or other claimant with
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respect to an account. Within the context of electronic funds transfers (EFTs), 502 requires
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that creditor process must be served on the bank of the EFT beneficiary who owes a debt to the
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creditor. N.Y. U.C.C. 4-A-502(4). The Republic argues that the district court impermissibly
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skirts 502s bar to creditor process except against a beneficiarys bank because the amended
16
injunctions purport to affect multiple banks and other financial institutions in active concert and
17
18
Section 502 is not controlling because the amended injunctions do not constitute, or give
19
rise to, creditor process, essentially defined in the statute as a levy or attachment. The cases
20
cited by Argentina are inapposite because they deal with attachments, and as we have seen, none
21
has occurred here. See Shipping Corp. of India Ltd. v. Jaldhi Overseas Pte Ltd., 585 F.3d 58, 70
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(2d Cir. 2009); Aurelius Capital Partners, LP v. Republic of Argentina, 584 F.3d 120, 124 (2d
Cir. 2009).
Section 503, however, does apply. It provides that only [f]or proper cause may a court
4
5
6
7
8
9
10
11
N.Y. U.C.C. 4-A-503. This section is designed to prevent interruption of a funds transfer
12
after it has been set in motion, and [i]n particular, intermediary banks are protected from
13
14
restrain (i) a person from issuing a payment order to initiate a funds transfer, (ii) an
[EFT] originators bank from executing the payment order of the originator, or (iii)
the [EFT] beneficiarys bank from releasing funds to the beneficiary or the
beneficiary from withdrawing the funds. A court may not otherwise restrain a person
from issuing a payment order, paying or receiving payment of a payment order, or
otherwise acting with respect to a funds transfer.
Argentina argues that plaintiffs purport to have cause for an injunction only with respect
15
to Argentina, and therefore any transfers not involving Argentina cannot be enjoined. But as
16
discussed above, the district court explained why it had good cause to issue injunctions that
17
cover Argentina as well as the Exchange Bond payment system. See NML II at *4-5. Moreover,
18
taking into account 503s ban on injunctions against intermediary banks, the district court
19
expressly excluded intermediary banks from the scope of the amended injunctions. Nonetheless,
20
Fintech argues that BNY, BNYs paying agents, and DTC all act as intermediary banks and are
21
all bound by the amended injunctions. We need not determine now what entities may or may not
22
act as intermediary banks in an EFT that violates the amended injunctions. Whether or not an
23
24
25
We note, however, that the record does not support Fintechs assertions. BNY does not
26
route funds transfers originated by Argentina to Exchange Bondholders. Rather, BNY accepts
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funds as a beneficiary of Argentinas EFT and then initiates new EFTs as directed by its
indenture. See Supp. App. 529, 535, 537, 628-759; see also Appellant Argentina Br. 35
([BNY] initiates its separate funds transfer to distribute payment . . . .) (emphasis in original).
It is noteworthy that neither Argentina nor BNY argue that BNY is an intermediary bank.
Similarly, the clearing systems such as DTC and Euroclear appear from the record and
from their own representations to be other than intermediary banks. DTC does not route wire
transfers but accepts funds that it then allocates only to the [participant banks and brokerage
houses] who have deposited the respective securities with DTC. Supp. App. 1289-90.
Euroclear receives payments from paying agents and then credits such amounts to its account
10
holders. Amicus Euroclear Br. 3. These are not the functions of an intermediary bank under
11
503. See In re Contichem LPG, No. 99 Civ. 10493, 1999 WL 977364, at *2 n.2 (S.D.N.Y. Oct.
12
27, 1999) (McKenna, J.), affd sub nom. ContiChem LPG v. Parsons Shipping Co., Ltd., 229
13
F.3d 426 (2d Cir. 2000) (explaining that a bank was not an intermediary bank for purposes of
14
U.C.C. 4-A-503 because it did not transfer by wire, or attempt to transfer by wire, the funds in
15
16
IV.
17
18
the commitments it made in the FAA would have cataclysmic repercussions in the capital
19
markets and the global economy, and we explained why we disagreed. See NML I at 263. On
20
this appeal, Argentina essentially recycles those arguments. We are mindful of the fact that
21
courts of equity should pay particular regard to the public consequences of any injunction. See
22
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). However, what the
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consequences predicted by Argentina have in common is that they are speculative, hyperbolic,
and almost entirely of the Republics own making. None of the arguments demonstrates an
The district court found that Argentina now has the financial wherewithal to meet its
WL 5895784, at *1. However, Argentina and the Euro Bondholders warn that Argentina may
not be able to pay or that paying will cause problems in the Argentine economy, which could
affect the global economy. But as we observed in our last opinion, other than this speculation,
Argentina makes no real argument that, to avoid defaulting on its other debt, it cannot afford to
10
service the defaulted debt, and it certainly fails to demonstrate that the district courts finding to
11
the contrary was clearly erroneous. NML I at 263. Moreover, and perhaps more critically,
12
Argentina failed to present the district court with any record evidence to support its assertions.
13
Argentina and amici next assert that, by forcing financial institutions and clearing
14
systems to scour all of their transactions for payments to Exchange Bondholders, the amended
15
injunctions will delay many unrelated payments to third parties. But the financial institutions in
16
question are already called on to navigate U.S. laws forbidding participation in various
17
international transactions. See, e.g., 31 C.F.R. 560.206 (forbidding trade by U.S. persons,
18
including financial institutions, with Iran); 31 C.F.R. 560.208 (forbidding dealings between
19
foreign persons engaged in trade with Iran and U.S. persons); United States v. HSBC Bank USA,
20
N.A., No. 12 Crim. 763, 2013 WL 3306161, at *8 (E.D.N.Y. July 1, 2013) (approving settlement
21
of criminal charges against bank for violations of U.S. law that allowed money laundering by
22
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http://www.treasury.gov/resource-center/sanctions/ofac-enforcement/documents/08182010.pdf
(settling allegations that a foreign bank violated U.S. prohibitions on payments to Cuba, Iran,
Burma, and Sudan).12 Indeed, the record in this case appears to belie those concerns and
suggests that payment system participants know when Exchange Bond payments are to arrive,
because each is identified by a unique code assigned to a particular Exchange Bond. See Supp.
App. 1290. In this context, we view Argentinas concerns as speculative. In any event, a district
court always retains the power to adjust the terms of an injunction as unforseen problems or
complexities involving entities such as the clearing systems present themselves. See United
States v. Diapulse Corp. of Am., 514 F.2d 1097, 1098 (2d Cir. 1975).
10
Also unpersuasive is Argentinas warning that we should vacate the injunctions because
11
future plaintiffs may move against multilateral and official sector entities like the IMF.
12
Appellant Argentina Br. 47. As we have observed, this case presents no claim that payments to
13
the IMF would violate the FAA. NML I at 260. A court addressing such a claim in the future
14
will have to decide whether to entertain it or whether to agree with the appellees that
15
16
multilateral institutions like the IMF would not violate the Equal Treatment Provision for the
17
simple reason that commercial creditors never were nor could be on equal footing with the
18
multilateral organizations. Id. Speculation that a future plaintiff might attempt recovery
19
12
We have never been presented with the question whether U.S. sanctions legally apply
to non-U.S. persons or institutions, and we do not answer that question today. We merely note
that both foreign and domestic financial institutions are already required to police their own
transactions in order to avoid violations of potentially applicable United States laws and
regulations.
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Next, Argentina and various amici assert that the amended injunctions will imperil future
sovereign debt restructurings. They argue essentially that success by holdout creditors in this
case will encourage other bondholders to refuse future exchange offers from other sovereigns.
They warn that rather than submitting to restructuring, bondholders will hold out for the
possibility of full recovery on their bonds at a later time, in turn causing second- and third-order
effects detrimental to the global economy and especially to developing countries. See generally
8
9
But this case is an exceptional one with little apparent bearing on transactions that can be
expected in the future. Our decision here does not control the interpretation of all pari passu
10
clauses or the obligations of other sovereign debtors under pari passu clauses in other debt
11
instruments. As we explicitly stated in our last opinion, we have not held that a sovereign debtor
12
breaches its pari passu clause every time it pays one creditor and not another, or even every time
13
it enacts a law disparately affecting a creditors rights. See NML I at 264 n.16. We simply
14
affirm the district courts conclusion that Argentinas extraordinary behavior was a violation of
15
16
We further observed that cases like this one are unlikely to occur in the future because
17
Argentina has been a uniquely recalcitrant debtor13 and because newer bonds almost universally
18
13
See also Robin Wigglesworth & Jude Webber, An Unforgiven Debt, Fin. Times, Nov.
28, 2012 (characterizing Argentina as an outlier in the history of sovereign restructurings);
Hung Q. Tran, The Role of Markets in Sovereign Debt Crisis Detection, Prevention and
Resolution, Remarks at Bank of International Settlements Seminar, Sovereign Risk: A World
Without Risk-Free Assets?, Jan. 8, 2013 (Argentina . . . remain[s] a unique example of a
sovereign debtor pursuing a unilateral and coercive approach to debt restructuring . . . .).
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impose a restructuring on potential holdouts. See NML I at 264. Argentina and amici respond
that, even with CACs, enough bondholders may nonetheless be motivated to refuse
restructurings and hold out for full paymentor that holdouts could buy up enough bonds of a
single series to defeat restructuring of that series. But a restructuring failure on one series would
still allow restructuring of the remainder of a sovereigns debt. And, as one amicus notes, if
transaction costs and other procedural inefficiencies are sufficient to block a super-majority of
creditors from voting in favor of a proposed restructuring, the proposed restructuring is likely to
Ultimately, though, our role is not to craft a resolution that will solve all the problems
10
that might arise in hypothetical future litigation involving other bonds and other nations. The
11
particular language of the FAAs pari passu clause dictated a certain result in this case, but
12
going forward, sovereigns and lenders are free to devise various mechanisms to avoid holdout
13
litigation if that is what they wish to do. They may also draft different pari passu clauses that
14
support the goal of avoiding holdout creditors. If, in the future, parties intend to bar preferential
15
payment, they may adopt language like that included in the FAA. If they mean only that
16
subsequently issued securities may not explicitly declare subordination of the earlier bonds, they
17
are free to say so. But none of this establishes why the plaintiffs should be barred from
18
19
For the same reason, we do not believe the outcome of this case threatens to steer bond
20
issuers away from the New York marketplace. On the contrary, our decision affirms a
21
proposition essential to the integrity of the capital markets: borrowers and lenders may, under
22
New York law, negotiate mutually agreeable terms for their transactions, but they will be held to
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those terms. We believe that the interestone widely shared in the financial communityin
maintaining New Yorks status as one of the foremost commercial centers is advanced by
requiring debtors, including foreign debtors, to pay their debts. See Weltover, Inc. v. Republic of
Argentina, 941 F.2d 145, 153 (2d Cir. 1991), affd, 504 U.S. 607 (1992).
5
6
CONCLUSION
For the foregoing reasons, we AFFIRM the district courts orders as amended.14 The
appeals from Exchange Bondholder Group, No. 12-4694, and from Fintech Advisory Inc., No.
12-4865, are hereby dismissed. Enforcement of the amended injunctions shall be stayed pending
the resolution by the Supreme Court of a timely petition for a writ of certiorari.
10
14